­­Congratulations to Washington State, which just became the first state to enact UPA 2017, the updated Uniform Parentage Act for use by U.S. states as uniform legislation for parentage laws, including the parentage of children born via assisted reproductive technology. The new law, signed by Governor Jay Inslee today, updates Washington’s existing Uniform Parentage Act. Among many other positive changes that bring current parentage law up to speed with social, legal, and medical advancements, enacting the UPA 2017 in Washington ends the state’s ban on compensated surrogacy. The new law provides criteria for enforceable surrogacy and donor agreements, adds important protections for LGBT intended parents, and is a necessary step in the right direction in preparing for the future of parentage law.

As happened in several states, Washington’s surrogacy ban was enacted in response to the notorious 1986 “Baby M” case, in which surrogate Mary Beth Whitehead changed her mind and fought to keep the baby. The intended parents, an infertile married couple, ultimately won custody of their child, but not before the U.S. public, still largely unfamiliar with the new technology, was shocked and repelled by the scandal.

A rash of state laws followed, many banning compensated surrogacy and rendering surrogacy and donor agreements unenforceable. As we have reported recently, “a portion of the damage done to the cause of reproductive freedom and surrogacy by the Baby M case is finally being repaired – one jurisdiction at a time.” The District of Columbia recently lifted its prohibition on surrogacy agreements, enacted in the late 1980s.

In 1988, in reaction to Baby M, the New York Task Force on Life and the Law urged lawmakers to outlaw compensated surrogacy, concluding that surrogacy was likely to lead to children being treated as commodities. Nearly 30 years later, in December 2017 the Task Force issued a report recommending the ban be lifted, pointing to research showing children are not harmed by surrogacy, nor are a surrogate’s biologically related children harmed by having their mother serve as a surrogate. “Research has revealed that children born through surrogacy and other ART practices are extremely desired children and are being raised by highly committed and loving parents,” the Task Force concluded.

Today’s bill signing was particularly meaningful to the bill’s sponsor. Washington Senator Jamie Pedersen is a gay man who, with his spouse, became a dad via IVF and surrogacy. Because the ban made it impossible for the couple to pursue surrogacy in their home state, they faced the expense and disruption of having their child in another state, California. Informed by that personal experience, Pedersen also chaired the UPA 2017 drafting committee, on which I and fellow ART attorney Steven Snyder served as observers on behalf of the American Bar Association ART Committee.

In 2011, then Representative Pedersen introduced a bill in the Washington House to expand parentage rights of state-registered domestic partners and other couples and provide criteria for enforcement of surrogacy agreements. After struggling in a divided legislature, the bill ultimately passed, but with the surrogacy provisions stripped out.

“This has been a project for me for almost 10 years, so I am really glad to get it done, and happy that my state is the first to enact UPA 2017,” Pedersen writes today.

UPA 2017 and Washington’s new law include several measures that will streamline the process for securing the parentage of babies born via ART, including children of single and LGBT intended parents.

As reported by the American Society for Reproductive Medicine, “UPA 2017 seeks to ensure the equal treatment of children born to same-sex couples.” UPA 2002, the most recent previous revision of the Uniform Parentage Act, included gender-specific terms and assumed a “couple” was one man, one woman. With the 2015 U.S. Supreme Court decision in Obergefell v. Hodges, treating same-sex intended parents differently than heterosexual intended parents would likely be unconstitutional. UPA 2017 and the new Washington law attempt to fix that by amending provisions so that they address and apply equally to same-sex couples, permitting and recognizing intended parents without regard to sex, sexual orientation, or marital status.

UPA 2017 and the Washington UPA also does away with the adoption-based model of the 2002 version, which required pre-pregnancy court approval and home studies of the intended parents. The current version treats the intended parents of a child born through gestational surrogacy as legal parents, without the need for a court order or judgment. Genetic, or “traditional” surrogacy, in which the surrogate is genetically related to the child, also is permitted but with additional requirements on the agreements.

Washington lawmakers finally succeeded in closing the chapter on the Baby M case that cast such a dark and enduring shadow on the then-emerging field of assisted reproductive technology. Now we are rooting for New York and others to follow.

Richard Vaughn

rich@iflg.net

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

ABOUT IFLG

As a law firm practicing exclusively in fertility law, we are committed to providing you and your family with the highest caliber legal support in all aspects of assisted reproductive technology law, including surrogacy, egg donation, embryo donation, sperm donation, parental rights, non-traditional family formation and second-parent adoption.

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.

Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.